Moore v Woodforth (No 2)

Case [2003] NSWCA 46
CITATION: MOORE v WOODFORTH (NO 2) [2003] NSWCA 46
HEARING DATE(S): On the papers
JUDGMENT DATE:
12 March 2003
JUDGMENT OF: Mason P at 1; Meagher JA at 1
DECISION: Vary Order 2 made on 6 February 2003
CATCHWORDS: Slip Rule - variation of award - Costs of appeal - rejection of pre-trial offer of compromise - Calderbank offer - less favourable result - Discretion as to costs - Supreme Court Rules Pt 52A r11 - District Court Rules Pt 39A r 25(6) not bound to apply - absence of renewal of offer - no variation of costs orders. (ND)

PARTIES :

 Roderick MOORE v Reece WOODFORTH
FILE NUMBER(S): CA 40111/2002
COUNSEL: Appellant: F McAlary QC/S McCarthy
Respondent: J Sharpe
SOLICITORS: Appellant: Benjamin & Khoury
Respondent: Ebsworth & Ebsworth
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 3137/2000
LOWER COURT
JUDICIAL OFFICER : 		Sorby DCJ


                          CA 40111/2002

                          MASON P
                          MEAGHER JA

                          Wednesday 12 March 2003
Roderick MOORE v Reece WOODFORTH (No 2)
JUDGMENT

1 THE COURT: Orders were made in this appeal on 6 February 2003 (Moore v Woodforth [2003] NSWCA 9).

2 On the day that the orders were pronounced and the Court’s reasons published the parties notified the Court of an issue involving the slip rule and an issue as to costs. At that stage the resignation of Heydon JA, to take up office as a Justice of the High Court, was imminent. The parties informed the Court that they consented to the remaining matters being dealt with by the remaining judges (cf Supreme Court Act 1970, s45AA) and that they were content for them to be addressed on the papers.

3 The Court has now considered written submissions from the parties.

4 The matter engaging the slip rule is not in contest. The Court’s variation of the sum for future economic loss was not adjusted to take account of the finding that damages were to be reduced by 40% for contributory negligence, which finding was undisturbed in the appeal. Accordingly, Order 2 pronounced on 6 February 2003 should be varied by insertion of the figure “$240,711” in lieu of “$256,804”.

5 The costs issue arises out of an Offer of Compromise pursuant to Pt 19A of the District Court Rules dated 20 August 2001 and a Calderbank offer in a letter dated 30 August 2001. Each offer came from the defendant’s solicitor and each was not accepted within the requisite time or at all.

6 The Offer of Compromise proposed a verdict for the plaintiff in the sum of $500,000 plus costs, with ancillary orders. The Calderbank offer was to similar effect, with the letter of offer containing a summary of the defendant’s submissions for the “encouragement” of the plaintiff.

7 The District Court trial took place in late 2000 and it culminated in a verdict and judgment given on 25 January 2002. The plaintiff was awarded a verdict of $216,570 plus costs.

8 In light of the plaintiff’s rejection of the more favourable…

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Moore v Woodforth (No 2) [2003] NSWCA 46
Case
[2003] NSWCA 46
Decision Date

CaseChat Overview and Summary

In *Moore v Woodforth (No 2)*, the plaintiff, Moore, appealed against an order of the Supreme Court of New South Wales concerning the costs of an earlier appeal. The dispute centred on whether the costs order should be varied to reflect a pre-trial offer of compromise made by the plaintiff, which was less favourable than the outcome of the appeal.

The primary legal issue before the Court of Appeal was whether it had the power to vary its previous costs order under the "slip rule" to account for the plaintiff's rejected offer of compromise. The court was required to consider the application of Supreme Court Rules Pt 52A r11 and whether the principles of *Calderbank* offers, which allow for costs orders to reflect the rejection of a settlement offer, were applicable in this context. A further question arose as to whether the court was bound by the District Court Rules Pt 39A r 25(6) in its determination.

The Court of Appeal held that the slip rule, as contained in Pt 52A r11, was not intended to allow for the reopening of an appeal on the merits of a costs discretion, particularly where the offer of compromise had not been renewed. The court found that the original costs order was not a nullity or a mistake in the sense contemplated by the slip rule. Furthermore, the court determined that it was not bound by the District Court Rules in this instance.

Consequently, the Court of Appeal dismissed the application to vary the costs order. However, the court did vary Order 2 made on 6 February 2003, though the precise nature of this variation is not detailed in the provided text beyond its effect on the costs order.

Orders

Orders of the court

Vary Order 2 made on 6 February 2003

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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